Utah Fuel Co. v. Industrial Commission of Utah

• Decision Date: 15 March 1926
• Docket Number: 4287
• Court: Utah Supreme Court
• Parties: UTAH FUEL CO. v. INDUSTRIAL COMMISSION OF UTAH et al

245 P. 381

67 Utah 25

UTAH FUEL CO. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4287

Supreme Court of Utah

March 15, 1926

Application by the Utah Fuel Company for a writ of review to review the award of the Industrial Commission in an application by Catherine Pelly, as guardian, etc., claimant for compensation.

AWARD ANNULLED.

Ferdinand Erickson, H. J. Binch, and Ray & Rawlins, all of Salt Lake City, for plaintiff.

Creighton King and King & Schulder, all of Salt Lake City, Harvey H Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty. Gen for defendants.

FRICK J. GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ.

OPINION

FRICK, J.

Upon the application to this court by the plaintiff, and pursuant to a writ of review issued thereon, the record of the proceedings had before the Industrial Commission of Utah, hereinafter called commission, has been certified to this court for review.

The facts, briefly stated, in substance, are: On March 8, 1924, while employed in plaintiff's coal mine in Carbon county, in this state, Thomas Pelly, Sr., and Thomas Pelly, Jr., father and son, in the course of employment, were killed by a gas explosion occurring in said mine. Thomas Pelly, Sr., left surviving him his widow, Catherine Pelly, and five children, the oldest of whom was 10 years and the youngest 13 months. In due time, Catherine Pelly, on behalf of herself and her said children, made application to the commission, pursuant to the Workmen's Compensation Law of this state, upon a blank furnished by the commission, for compensation for the death of her said husband. The plaintiff company immediately appeared before the commission, admitted all the facts, and consented that the commission might make an award in favor of the widow and said children. It appears that no evidence was introduced in support of the application, but the commission nevertheless made a finding that the widow and children were wholly dependent upon the deceased Thomas Pelly, Sr., for their support, and pursuant thereto made an award of the highest amount and the longest time permitted by our statute in case of death, namely, $ 16 per week for a period of 312 weeks, payments to commence from the date of the death of said Thomas Pelly, Sr. The plaintiff complied with the order of the commission in making payments. Thereafter, on October 17, 1924, said Catherine Pelly, as guardian of the children aforesaid, made a second application to the commission, in which she asked that she be awarded further compensation for herself and for said minor children for the death of Thomas Pelly, Jr., the son who, as aforesaid, was killed at the same time and in the same accident that his father, Thomas Pelly, Sr., was killed. In the second application she averred that she and said children were partly dependent upon said Thomas Pelly, Jr., for support. The plaintiff appeared and contested the right of Mrs. Pelly to additional compensation, both for herself and for said children. A hearing was duly had upon the second application, at which considerable evidence was produced in support of said application. After the hearing was concluded, the commission found that Mrs. Pelly and her said children, at the time of the death of Thomas Pelly, Jr., were partly dependent upon him for support, that his wages amounted to $ 5.85 per day, and that he had given all of his earnings to Mrs. Pelly, his mother, and that the same had been applied to the support of herself and her said children, in addition to the wages earned by the deceased Thomas Pelly, Sr., the father of said children, whose wages were slightly in excess of $ 225 per month. The commission accordingly made a further award, and ordered the plaintiff to pay, for the support of Mrs. Pelly and said children, the sum of $ 16 per week for a period of 312 weeks, as compensation for the death of Thomas Pelly, Jr., payments to commence from his death, as aforesaid.

The record also discloses that on the last hearing, and before making the said award, the commission, upon its own motion, and without notice to the plaintiff, modified the finding made upon the first application (that Mrs. Pelly and her said children were wholly dependent for their support upon Thomas Pelly, Sr.), to the effect that they were only partly dependent upon him for their support. The record, therefore, as it now stands, is to the effect that Mrs. Pelly and her said children at the time of the death of the father and the son were partly dependent upon each of them for their support.

The plaintiff contends (1) that the commission exceeded its power or jurisdiction in making the second award in favor of Mrs. Pelly and the children; (2) that the award made upon the second application "is excessive and not supported by the evidence"; and (3) that the commission acted in excess of its power or jurisdiction in modifying the finding made upon the first application as hereinbefore stated.

We shall consider the foregoing objections in the order we have stated them.

The plaintiff vigorously insists that in any case where the survivors are wholly dependent for support upon a deceased employe but one award is permissible, which may not exceed the amount specified in Comp. Laws Utah 1917, § 3140, as amended by chapter 67, Laws Utah 1921. Section 3140, subds. 2 and 3, read as follows:

"2. If there are wholly dependent persons at the time of the death, the payment shall be 60 per cent of the average weekly wage, but not to exceed a maximum of $ 16 per week, and to continue for the remainder of the period between the date of the death, and six years after the date of the injury, and not to amount to more than a maximum of $ 5,000 nor less than a minimum of $ 2,000."

"3. If there are partly dependent persons at the time of the death, the payment shall be 60 per cent of the average weekly wages, but not to exceed the maximum of $ 16 per week, and to continue for all or such portion of the period of six years after the date of injury, as the commission in each case may determine, and not to amount to more than a maximum of $ 5,000, provided that the benefits provided for in this subsection shall be in keeping with the circumstances and conditions of dependency existing at the date of injury, and any amount awarded by the commission under this section must be consistent with the general provisions of this act."

It will be observed that the amount that may be awarded under subdivision 2 is 60 per cent of the average weekly wage, but in no event can the award exceed $ 16 per week, nor can it be in excess of $ 5,000, nor for a period exceeding 6 years or 312 weeks. Under that subdivision, however, the award cannot be less than $ 2,000. It will also be noticed that the weekly allowance of $ 16 for 312 weeks falls a little short of $ 5,000. Under subdivision 3 of the section aforesaid, which applies to survivors who are only partly dependent upon the deceased employe for support, the weekly amount, and the gross amount, and the period of time may, however, be the same as under subdivision 2. No minimum amount is specified under subdivision 3, and that subdivision contains a proviso:

"That the benefits provided for in this subsection shall be in keeping with the circumstances and conditions of dependency existing at the date of injury, and any amount awarded by the commission under this section must be consistent with the general provisions of this act."

The statute therefore vests the commission with some discretionary powers in making the award where the applicant was only partly dependent for support upon the deceased employe. The discretion must, however, be exercised reasonably, and not arbitrarily and capriciously, and should always be in conformity with the general provisions of the act. Under subdivision 3, the question always arises, To what extent was the applicant dependent upon the deceased employe for support at the time of his death or injury? Section 3140, supra, in another subdivision, also provides that, in case of the death of a husband and father, who, at the time of death, lives with his wife and children, the wife and female children under the age of 18 years, and the male children under the age of 16 years, "shall be presumed to be wholly dependent for support upon the deceased employe." In every case, therefore, where it is made to appear that the deceased employe left surviving him a wife, or a wife and children as aforesaid, with whom he lived at the time of the injury resulting in death, the presumption is that such wife or wife and children were wholly dependent upon the deceased for their support. In the case at bar, therefore, when the first application was made, the plaintiff admitted all the facts entitling Mrs. Pelly and her children to an award, and the commission, acting upon the presumption of law, made a finding that she and the children were wholly dependent upon the deceased Thomas Pelly, Sr., for their support, and accordingly made an award to conform to the presumption and finding.

As before stated, the plaintiff, at the hearing before the commission upon the second application, insisted, and in this court insists, that, inasmuch as the commission made the finding and award as aforesaid, it was powerless or without jurisdiction to make the second award. Is that contention sound? It may be that, where the record shows that the applicants were wholly dependent upon the deceased employe for their support--if by the phrase "wholly dependent" is is meant that they were dependent upon him alone and upon no one else--the contention of plaintiff would technically be correct. It is also true that the courts generally construe the phrase "wholly dependent" to mean that the applicants were in fact dependent for their support upon...